Will Justice Kennedy Save Albert Woodfox?

It now is clear beyond all doubt that state judges in Louisiana, and a majority of the federal appellate judges who oversee that jurisdiction, are never going to let aging, ill, unconvicted Albert Woodfox spend a day of freedom no matter how dubious the capital case is against him. Woodfox, who has spent more than 40 years in solitary confinement in the notorious Angola prison[3] for a crime many are convinced he did not commit[4], lost another round in court Monday night when the 5th U.S. Circuit Court of Appeals concluded by a 2-1 vote[5] that his cause did not merit “exceptional” relief. The truth is that the case against Woodfox, the surviving member[6] of the “Angola 3,” is one of the most “exceptional” cases of systemic injustice you are ever likely to see.

Woodfox’s attorney told me late Monday night that he plans to appeal the 5th Circuit ruling to the United States Supreme Court. This means that Justice Anthony Kennedy will have yet another opportunity to put into practice the lofty words he wrote last spring when he denounced solitary confinement in a striking concurrence[7] in Davis v. Ayala. Indeed, 5th Circuit Judge James Dennis, the lone dissenter in the Woodfox case, seemed to be writing directly to Justice Kennedy when he described the context in which Woodfox’s claims were rejected by the majority:

If ever a case justifiably could be considered to present “exceptional circumstances” barring re-prosecution, this is that case. For more than four decades, Albert Woodfox has been solitarily confined to a nine-by-six foot cell for 23 hours each day. During the single hour of the day that Woodfox is permitted outside his compact single cell, he also must remain in solitude.

At all times, therefore, Woodfox remains in unmitigated isolation—despite being a model prisoner who is now 68 years old and in frail health suffering from an onslaught of life-shortening conditions including heart disease, kidney disease, diabetes, high blood pressure, and a liver ailment that puts him at a high risk for developing cancer.

Although the State of Louisiana has subjected Woodfox to these harsh conditions for the 1972 murder of Brent Miller, the State has twice tried and twice failed to obtain a constitutionally valid conviction of Woodfox. In other words, for the vast majority of his life, Woodfox has spent nearly every waking hour in a cramped cell in crushing solitude without a valid conviction to justify what Justice Kennedy recently described as the “terrible price” paid by those suffering “[y]ears on end of near-total isolation.”

What has happened in the Woodfox case is not difficult to understand. Woodfox is a black man accused of killing a white prison guard in 1972. Perhaps worse, for purposes of Louisiana justice, he is accused of having joined the Black Panther Party and having led prison protests against segregation and other living conditions at Angola. The first conviction against him was overturned because of the woeful work of his trial attorney. The second conviction was overturned because of prosecutorial misconduct and racial bias at the grand jury stage of the case. After each of these defeats prosecutors could have simply stopped trying to pin the murder on Woodfox (the evidence against him was never strong and is even weaker today). At every stage state judges could have said “enough” and ordered his release. And yet there he remains: a prisoner without a valid conviction against him.

The Woodfox case is a symbol of white supremacy, institutional racism, and the hollowness of appellate review in jurisdictions like Louisiana (which did the same thing to Herman Wallace[8] and Glenn Ford[9] and countless other black men who got caught up in the system). The state finally gave up and released Wallace just a few days before he died. It gave up and released Ford after he got cancer in confinement — Ford lasted only a few months on the outside and died knowing Louisiana refused to compensate him for a wrongful conviction. And the Supreme Court, explicitly or implicitly, allowed all of this to happen.

Which brings us back to Justice Kennedy. The ordeal of the prisoner who piqued the Justice’s interest in Davis v. Ayala, a man named Hector Ayala, has spent less than half the time in solitary confinement that Albert Woodfox has spent. And it is clear that the evidence against Ayala is at least twice as strong as is the evidence (what’s left of it) against Woodfox. If ever there were a case in which the length of isolated detention (much of which was spent without the penalty of a valid conviction, remember) creates the “exceptional” circumstance warranting relief, this is it. The Woodfox case has meant many things to many different people in the 40-plus years in which it has circulated through our justice systems. We ought to know soon what it, and the fight against solitary confinement, really mean to Justice Kennedy.

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.